- (1.)Both the revisions under section 11 of the U.P. Trade Tax Act, 1948, have been preferred against the judgment and order dated November 27, 2003 passed by the Trade Tax Tribunal, Luck-now in Second Appeal Nos. 316 of 1997 and 23 of 2000, for the assessment year 1992-93. The brief facts of the case are that the revisionist is a sole proprietorship firm, which was engaged in the manufacture and sale of bricks. Earlier, the revisionist was availing of the benefit of compounding scheme and orders were passed under section 7D of the Act but on October 6, 1992 the sole proprietor Sri Radhey Shyam Agarwal died and his legal heir Sri Sunil Kumar Agarwal had taken over the business. On September 21, 1992, June 28, 1992, June 6, 1992 and August 17, 1992, surveys were conducted at the business premises of the assessee. On the spot, no books of accounts were found though Muneem (Accountant) was available. At the time of survey, it was found that firing in the kiln was going on and stock was available. After rejecting the books of accounts, the assessing officer has estimated the turnover on estimate basis for Rs. 23,40,000 and levied the tax of Rs. 2,34,000 vide order dated March 30, 1996.
(2.)However, in first appeal, the first appellate authority vide his order dated May 26, 1997 again estimated the same and reduced the turnover to Rs. 4,48,800 and levied the tax of Rs. 44,880. Being aggrieved, the assessee has filed Second Appeal No. 23 of 2000; and at the same time, the Department has also filed Cross Appeal No. 316 of 1997 before the Tribunal, who by common judgment, dismissed the appeal filed by the assessee, against which present Trade Tax Revision No. 231 of 2004 has been filed by the assessee. In the Departmental Appeal No. 316 of 1997, the Tribunal has enhanced the addition for Rs. 39,225. Being aggrieved, the assessee has filed the present Trade Tax Revision No. 330 of 2004.
(3.)With this backdrop, Sri M.M. Dewan, learned counsel for the revisionist, submits that the assessing officer has wrongly determined the production of one lakh bricks in six days but the production of brick kiln depends on various factors such as location, nature of the soil, extent of moisture in soil, the weather conditions, etc. For this purpose, he has relied on the ratio laid down in the cases of Jai Hind Brick Works v. Commissioner of Sales Tax,1988 UPTC 520 and Awadhesh Narain Singh v. Commissioner of Sales Tax,1988 UPTC 68.